Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital; Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital

[2020] NSWSC 1653

Supreme Court

New South Wales

Medium Neutral Citation:

Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital; Fiore v Nepean Blue Mountains Local Health District trading as Nepean Hospital [2020] NSWSC 1653

Hearing dates:

19 November 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

The motion is dismissed.

The usual order under the Rules is that costs follow the event, which in this case is an order that Crystal Bubs and Mr Jordan bear the plaintiff’s costs of the motion, as agreed or assessed. Unless the parties approach to be heard on costs within 7 days, that will be the Court’s order.

Catchwords:

PRACTICE AND PROCEDURE – Separate determination – Uniform Civil Procedure Rules 2005 (NSW), r 28.2 – Application to consider liability in relation to two defendants before other issues – Where there are significant disputes of fact – Where plaintiff’s credibility is likely to be in issue both on liability and damages – Motion dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss. 56, 57, 58(2), 59, 60

Uniform Civil Procedure Rules 2005 (NSW) r. 28.2

Cases Cited:

ABB Engineering Construction Pty Ltd v Freight Rail Corp [1999] NSWSC 1037

Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979

Tepko Pty Ltd v Water Board (2001) 206 CLR 1; (2001) 178 ALR 634

Category:

Principal judgment

Parties:

2020/164448
Adriana Fiore (1st Plaintiff)
Marcelo Fiore (2nd Plaintiff)
Nepean Blue Mountains Local Health District trading as Nepean Hospital (1st Defendant)
Mr Raymond Allan Jordan (2nd Defendant)
Crystal Bubs Pty Ltd (3rd Defendant)
2020/171712
Valentina Fiore (1st Plaintiff)
Sienna Fiore (2nd Plaintiff)
Nepean Blue Mountains Local Health District trading as Nepean Hospital (1st Defendant)
Mr Raymond Allan Jordan (2nd Defendant)
Crystal Bubs Pty Ltd (3rd Defendant)

Representation:

Counsel:
D. Elliott (All Plaintiffs)
P. Folino-Gallo (Second and Third Defendants)
Solicitors:
Gerard Malouf & Partners (All Plaintiffs)
Crown Solicitors (1st Defendant)
Marsdens Law Group (2nd and 3rd Defendants)

File Number(s):

2020/164448
2020/171712

Judgment

1. Mr and Ms Fiore and their son bring claims for damages in negligence against the Heath District, Crystal Bubs Pty Ltd and Mr Jordan, its sole director and shareholder. It is claimed that he is one of the sonographers who undertook ultrasound studies which failed to detect that the child was suffering Trisomy 21 before he was born with Down Syndrome in June 2016.

2. Amongst other things it is claimed that Ms Fiore accepted the Health District’s medical professionals’ advice that she should undergo obstetric ultrasound studies in February and March 2016 against the risk of Down Syndrome and other defects. Further, that:

• the images taken were misreported as being normal, with the result that further investigation, treatment or counselling were not pursued;

• there was a foreseeable and not insignificant risk of harm resulting from negligently undiagnosed and misreported ultrasounds, against which reasonable precautions would be taken, by re-examination and further targeted investigation of the foetal heart; and

• if such investigations had occurred, Down Syndrome would likely have been confirmed, so that Ms Fiore could have considered her options and probably undergone a termination.

3. By their motion Crystal Bubs and Mr Jordan seek orders that the question of their liability be decided separately and before any other issues, that being said to depend on whether they owed the plaintiffs a duty of care and if they did, the scope of that duty. The orders are opposed by the plaintiffs, but the Health District did not wish to be heard on the motion.

Issues

4. The principles which apply to the resolution of an application under rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination of a separate question were not in issue. In exercising that power, the Court must give effect to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just quick and cheap resolution of the real issues in the proceedings, taking into account the objects of case management specified in s57; what the dictates of justice require, having regard to the matters specified in s58(2); as well as the elimination of delay and proportionality of costs: ss59 and 60.

5. Even so an order of the kind sought is not lightly made, given the difficulties that can result, as apparent savings in time and expense may prove to be illusory: Tepko Pty Ltd v Water Board (2001) 206 CLR 1 (2001) 178 ALR 634 at [168]-[171]. This can be especially so where credit issues arise to be resolved on both liability and damages: Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979 at [4].

6. In this case there are also both factual and legal issues necessary to resolve on the question of liability, including as to the nature of the services which Crystal Bubs and Mr Jordan offered and provided. Whether the representations Ms Fiore claims she relied on were made; what they each said at relevant times; the nature and extent of any duty owed; and whether it was breached are also in issue.

The evidence

7. Mr Jordan has sworn two affidavits in which he deposes amongst other things that:

• He obtained a Diploma of Technology in Medical Radiography and became registered in the United States and Canada to perform medical ultrasounds.

• After he moved to Australia Crystal Bubs was incorporated in 2007 to conduct a business which offered sub-laser engravings of 3D foetal imaging created in crystal or glass as keepsakes, based on ultrasound images taken of the foetus, as well as providing private non-medical bonding images for parents-to-be.

• He understood the difference between bonding and medical ultrasounds. Bonding ultrasounds did not involve assessments, but provided an elective bonding experience without medical referral which was not rebated by Medicare. They lasted from 10 to 40 minutes, depending on the package selected. Medical ultrasounds involved a referral of the patient for diagnostic services billed to Medicare and required assessment of the foetus for abnormalities with the prior provision of specific family history which the ultrasound operator needed before performing the ultrasound. Medical ultrasounds could last an hour or more, and involved assessment and measurement of vital organs, blood flow, placenta and amniotic fluids.

• Both the website and information provided at booking indicated that the ultrasound offered was not for medical diagnosis or services.

• His practice was to turn away customers seeking medical ultrasounds because that was not a service offered. Rather, the ultrasound was intended to provide an enjoyable, fun bonding experience, without the taking of measurements or provision of any reports or advice. If a major and obvious abnormality was noticed, customers were advised to refer to their medical care provider.

• He remembered Ms Fiore making the booking and discussing playing a gender joke on her husband, of which he made a note. The booking made was for the shortest scan offered and Mr and Ms Fiore and their children attended. No medical referral was provided and the agreed joke was played. At the end of the appointment still frame photos were chosen and the video was burned to disc. There were no questions or discussions about the health of the foetus and no report was provided.

• Crystal Bubs does not hold a professional liability policy because neither Mr Jordan nor it offered diagnostic medical ultrasound services. It is he who has to personally bear the costs of the proceedings.

• He is not a medical diagnostic sonographer or member of the Sonographers Association of Australia.

8. On that evidence it is obvious that the separate determination of the liability of Crystal Bubs and Mr Jordan is important to them. This is a relevant, but not decisive consideration.

9. Ms Fiore has sworn an affidavit deposing that her son was born at Nepean Hospital in June 2016 after care provided at the Nepean Antenatal Clinic. She received postnatal care at Mr Druitt Blacktown Hospital. At birth her son’s atrioventricular canal defect was not diagnosed, with the result that he suffered sleep apnoea, adenoid hypertrophy, substantially delayed speech and ability to walk and a global delay in development.

10. The defect was diagnosed in late 2017 and successfully treated with surgery in February 2018, when he was aged about 20 months.

11. Ms Fiore had first used Crystal Bubs service in late 2011, after “the usual morphology scan”, because as first time parents she and Mr Fiore wanted a second opinion and clearer view of their child. They found the Crystal Bubs “‘A Peak of U” website, which offered a one of a kind advanced machine which provided superior images to the 2D images offered elsewhere in regular clinics.

12. The screen shot of part of the website annexed to her affidavit was undated, but referred to A Peek of U having been introducing parents and their families to babies “for the past 10 years”. Given Mr Jordan’s evidence, it does not seem that this was a screenshot of the website in 2011, but that does not now have to be resolved.

13. The site there offered “Bonding Ultrasound” and did not refer to medical ultrasounds, but under the heading “Owner Clinical Specialist” it was said:

“The owner does the scanning. Being a clinical specialist in medical imaging and the owner of the business gives you the best of both worlds. If something is observed that your medical caregiver should be aware of you will be given a note to discuss this with them also the one doing the scanning can’t be pressured by management to rush you through to get the next customers in. In most cases our bookings are 1 hour apart unlike some centres who book 10-15 minutes apart.”

14. Ms Fiore said that in 2013 when she was pregnant with her second child she spoke to Mr Jordan, in order to get a second opinion about a scan from Nepean Hospital which indicated that the baby had a small arm bone, which could have been a sign of Down Syndrome. A professor had conducted a second ultrasound which was said to be fine, but she then wanted a more thorough scan, which he agreed to provide, telling her his 3D/4D machine could pick up on defects such as heart defects and cleft palates.

15. Ms Fiore said that she thus understood that Crystal Bubs and Mr Jordan could take and interpret scans and pick up and report on abnormalities and that the A Peek of U service was “equivalent to a professional medical service and was using superior technology”. They relied on Mr Jordan’s assurances and obtained a scan “which was reported as normal”.

16. In May 2013 Ms Fiore had had a morphology scan at Nepean Antenatal clinic which also reported possible short forearm bones, which was indicative, but not conclusive of, possible Down Syndrome. The hospital referred them for another scan in September and they were advised that there were no signs of abnormalities and that the original sonographer had written the incorrect calculations. It was to reassure themselves that Mr and Ms Fiore wanted another opinion and again approached A Peek of U, not as the result of any referral by the hospital, but in reliance on Mr Jordan’s previous statements.

17. In 2016, Ms Fiore again approached Mr Jordan and had a conversation to the following effect:

“Jordan: A Peak of U, Ray speaking

Me: Hi, I would like to make a booking for a scan.

Jordan: Do you want a 3D/4D ultrasound?

Me: Yes.

Jordan: That sounds great, Adriana. We have a one-of-a-kind machine. This is the latest machine which can detect certain features of the foetus. It is top-notch. It can pick up cleft palates and other issues regular ultrasound scans don’t pick up because it’s 3D/4D. It’ll be a great experience; we provide a safe environment for you both to see and bond with your baby while we check on its development.”

18. Ms Fiore did not refer to any scans undertaken by the hospital, but it appears to be common ground that they were also taken. She said that she understood in 2012 and 2013 that “we would be getting a medical scan appropriate for the serious purpose of diagnosis of defects”, which was why she returned to Crystal Bubs. She also said:

“16. On none of these occasions was I warned of any limitations in the medical efficacy of the scan nor of Mr Jordan's ability to competently and accurately read and report the results, nor the need to have a medical study at an imaging clinic for proper diagnosis.

17. I had communicated to Mr Jordan that I wanted a diagnostic scan and I thought as a result of the web searches, conversations and my experiences to date, that this would be a professional medical study which was a superior alternative to a regular scan in an imaging clinic. Had I known that the Second Defendant would subsequently assert that it was in effect offering a novelty service with no diagnostic benefit I would have undergone a regular medical imaging scan. I was not interested in a "bonding" experience, I wanted medical help and I made that clear to Mr Jordan each time I dealt with him.

1. I was not warned that we should also obtain a medical study from a medical imaging clinic. During this conversation and relying on the conversation and the website, I made a booking for 6 March 2016.”

   19. When the scan was undertaken she and her husband were shown the four chambers of the heart, amongst other features and Mr Jordan said words to the effect of:

“Your baby looks happy and healthy” and "Your baby appears to be developing normally”.

20. Ms Fiore also said:

21. At no time during the assessment did Mr Jordan make any comments regarding the fact that he was unqualified to comment upon the health of the foetus and his opinion was simply well intentioned comment but diagnostically baseless.

22. I was re-assured by the experience and did not get a medical study done and continued with the pregnancy. Had I realised that there was in fact a defect and such was confirmed I would have considered my options and would have had the benefit of a diagnosis in utero and at birth which could have been repaired early in Sebastian's life and before he experienced significant hypoxia and other stressors due to his undiagnosed heart defect.”

The application must be refused

21. There is no issue on this evidence that the relevant facts are not agreed. To the contrary, they are in significant dispute and there is a resulting issue as to Ms Fiore’s and Mr Jordan’s credit, on which the question of the existence of the claimed duty will turn.

22. In the circumstances I am satisfied that the application for determination of a separate question cannot justly be granted.

23. Undoubtedly if the issues lying between the plaintiffs and Mr Jordan and Crystal Bubs are resolved in the way for which he contends, he will be saved considerable time, trouble and expense.

24. The parties agreed that Ms Fiore’s credit, on which the plaintiffs’ case on both liability and damages in part depends, will also be relevant to the determination of the claims advanced against the Health District. Thus determination of the proposed separate question will not be determinative of her credit. It is also therefore relevant that the remaining issues will potentially have to be resolved by a different judge.

25. It follows that fairness to all of the parties in granting the separate hearing which Mr Jordan and Crystal Bubs seek, is not beyond question: Tepko at [170].

26. Given the position as to credit this is a case like ABB Engineering Construction Pty Ltd v Freight RailCorp [1999] NSWSC 1037, where Rolfe J’s reasons for refusing the application succinctly explain why in this case the same conclusion must be reached. Amongst other things his Honour discussed at [15]-[17]:

• That a case should usually be conducted on the basis that witnesses are cross-examined on all issues at the same time, because the evidence given on one issue may impact on the acceptability of the evidence given on another. Otherwise difficult questions can arise as to the extent to which cross-examination on the matters not being litigated should be allowed and for the cross-examiner, as to how far matters not in issue at that point can and/or should be pursued.

• Where credit is in issue a cross-examiner should not be precluded from cross-examining on the issue of damages merely because the only matter being litigated is liability. Otherwise the Court may be prevented from making a fully informed assessment of the credibility of the witness if the cross-examination is truncated, or if contradictory material cannot be led because the cross-examination goes only to credit and not to other issues.

• If a judge hearing the issue of liability makes any finding on the credit of a witness who is also to give evidence on the other issues to be litigated that judge will, in all probability, be disqualified from hearing the rest of the matter, with the result that the store of knowledge he or she has obtained from the initial hearing is lost, as is the impact of the evidence upon him or her: Australian National Industries Limited v Spedley Securities Limited (In Liquidation) (1992) 26 NSWLR 411. This can lead to an inefficient use of the Court’s and the parties’ time and resources.

• Plaintiffs who don’t succeed on liability may make an application for leave to appeal, lengthening the time during which the litigation is on foot and potentially increasing costs to the financial detriment of the parties. A divided hearing also leaves open the possibility of a second appeal.

27. These are also powerful considerations in this case. In the result I am satisfied that granting the application would not further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in these proceedings, nor would it be consistent with what the dictates of justice require in all of the circumstances I have discussed.

Orders

28. For these reasons the motion is dismissed.

29. The usual order under the UCPR is that costs follow the event, which in this case is an order that Crystal Bubs and Mr Jordan bear the plaintiffs costs of the motion, as agreed or assessed. Unless the parties approach to be heard on costs within 7 days, that will be the Court’s order.

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Decision last updated: 20 November 2020